Smokers' right to sue to be heard High court to review suit against firms

WASHINGTON -- After years of staying out of the smoking and health controversy, the Supreme Court stepped into the middle of it yesterday, agreeing to rule on smokers' legal rights RTC against cigarette manufacturers.

In a case from New Jersey -- the state where the tobacco industry has suffered some of its most serious legal setbacks -- the court said it would clarify the amount of legal protection a federal law may give cigarette makers when they are sued by smokers or their surviving heirs.

Thomas Cipollone of Little Ferry, N.J., whose mother died in 1984 from lung cancer at age 58 after smoking cigarettes for 41 years, contends that the manufacturers covered up the health risks of cigarettes and should pay for her disease and death.

Rose D. Cipollone, the son's lawsuit argues, believed the companies' advertising suggesting that smoking had been proven medically safe -- ads that allegedly were part of a nationwide campaign to undermine the warnings federal law requires on package labels and in advertising.

The Cipollone case has been in court for eight years. Ironically, at an earlier stage of the case in 1987, the Supreme Court refused to rule on the very issue it now says it will decide. But lower courts have now split on the industry's claim of legal immunity under federal law, and the justices were asked this time -- by both sides -- to step in and sort out the conflict.

The industry now faces 45 similar lawsuits in a variety of courts across the nation, and it stands to lose potentially millions of dollars if the court's coming decision narrows the legal immunity companies claim Congress gave them under the federal law that controls cigarette package labeling and advertising. The law was passed in 1966 and expanded in 1970 and 1984.

State courts -- one in New Jersey and one in Texas -- have ruled that the federal protection does not bar smokers or their survivors from suing manufacturers for damages under state law.

By contrast, five different federal appeals courts -- including the one in Philadelphia that decided against the Cipollone family's claims -- have ruled that the federal law rules out most claims for damages under state laws for disease or death suffered after the federal law went into effect.

New Jersey has become a major battleground in the legal fight over smoking and health, and the Cipollone case was the first one in which a jury ever awarded damages against a cigarette maker. Mrs. Cipollone's late husband, Antonio, was awarded $400,000 in 1989 in a lawsuit brought against Liggett Group Inc. for allegedly breaking a promise it had made before 1966 about the safety of smoking. That award, overturned by a federal appeals court, is not at issue in the new case the Supreme Court will hear.

Antonio Cipollone died in January 1990.

The new case involves Mrs. Cipollone's estate, which was denied damages by a federal court jury after it found that she continued to smoke long after the industry was required to put health warnings on its labels and in its ads.

After the federal appeals court in Philadelphia issued its latest ruling against the Cipollones, the New Jersey Supreme Court ruled last summer that the federal law does not immunize the industry from smokers' lawsuits in state courts in New Jersey.

But the Cipollone family could not take advantage of the state court ruling because their case was going on in federal court. After the Supreme Court rules, New Jersey's courts and other state courts will have to follow that interpretation.

The family's lawsuit is aimed at three companies that made the five brands of cigarettes Mrs. Cipollone smoked: Chesterfield and L&M, made by Liggett Group; Virginia Slim and Parliament, made by Phillip Morris Inc.; and True, made by Lorillard Inc.

A final decision in the case of Cipollone vs. Liggett Group (No. 90-1038) is expected by the summer of 1992.

In a separate action yesterday, the justices refused to be drawn into a controversy over whether individuals have a right to be paid when they give up body tissues or organs for medical experiments.

A Seattle man had contended that doctors exploited his body tissues in a research project.